The opinion of the court was delivered by: CORCORAN
CORCORAN, District Judge.
This matter is before the Court on cross-motions for summary judgment. Fed.R.Civ.P. 56. The parties have agreed that there are no material facts as to which there is a genuine dispute, that only legal issues remain, and that summary judgment accordingly is the appropriate vehicle for disposition of the case. See, e.g., Leonard v. BHJK Corp., 152 U.S.App.D.C. 97, 99, 469 F.2d 108, 110 (1972).
Plaintiff is a 72 year old naturalized American citizen of Yugoslavian descent. In his amended complaint he seeks to compel the United States Civil Service Commission (CSC) to credit him with retirement benefits, in accordance with 5 U.S.C. § 8332(b) (1970), for the period from October 2, 1950, through June 30, 1960. During that time plaintiff rendered services to the United States as a foreign language (Serbo-Croatian) instructor at the Department of State Foreign Service Institute (FSI).
The defendants are the United States, the Secretary of State and each CSC Commissioner.
This Court's jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331, 1361 and 1651.
The issue is whether plaintiff, during the period in question, was an employee of the United States, and thus entitled to retirement benefits or whether he was a self-employed independent contractor, and so not entitled to retirement benefits. The CSC ruled adversely to plaintiff and this timely application for review of that adverse decision followed.
For the reasons set out hereinafter, the Court grants summary judgment for the plaintiff.
The facts are undisputed.
On October 2, 1950, plaintiff entered into a standard form contract with the Department of State to render services as a native speaker in the Serbo-Croatian language, "when and as directed by the Director of the Foreign Service Institute." The contract expired June 30, 1951. Thereafter, contracts of an identical nature were entered into annually between plaintiff and the Department of State. Beginning on July 1, 1954, however, the contract which plaintiff was required to sign as a condition of his continuing employment was amended to contain a clause stating that the plaintiff was "not an employee of the Department of State." Standard form contracts containing such language were thereafter signed annually by plaintiff, the final such contract expiring on June 30, 1960.
On July 1, 1960, plaintiff received a regular temporary appointment as a Training Instructor with FSI and was thereafter reappointed annually in that capacity through 1965. Then, on January 2, 1966, he received a career appointment to a limited assignment as a Foreign Service Reserve Officer, in which capacity he remains today.
Meanwhile, on September 26, 1966, in a letter to the CSC's Bureau of Retirement, Insurance and Occupational Health (BRIOH), plaintiff raised the question of creditability of retirement benefits for the period October, 1950, to June, 1960, during which he was under contract, supra. BRIOH advised plaintiff on December 27, 1966, that during that period he did not meet the statutory definition of a Federal employee as set forth in 5 U.S.C. §§ 8331(1) and 2105(a). Specifically, BRIOH denied the requested benefits on the grounds that plaintiff was "self-employed and not under the supervision and direction of a Federal officer for the term of the contracts." (R. 60.)
In a decision issued October 14, 1970, CSC's Board of Appeals and Review (BAR) affirmed the decision of BRIOH. (R. 64-69.) BAR held that the annual contracts for the 1950-1960 period were for non-personal services and did not create an employment relationship creditable for retirement benefits. Thereafter, on two occasions, the CSC Commissioners rejected petitions to reopen or to reconsider the BAR ruling, the last such rejection occurring on March 23, 1973. The plaintiff then filed in the Court of Claims which dismissed the petition on jurisdictional grounds.
He then filed his complaint in this Court on March 13, 1974.
The defendants challenge this Court's jurisdiction on various grounds.
First, it is asserted that the doctrine of sovereign immunity bars this action under 28 U.S.C. § 1331(a).
See, e.g., United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949); Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963). However, it is clear that, in this circuit, § 10 of the Administrative Procedure Act, 5 U.S.C. § 702,
even though not pleaded provides "an independent source of jurisdiction that empowers district courts to review much agency action regardless of the amount in controversy."
Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, at 1109 (D.C.Cir. 1974), (citations omitted). See also Associated Electric Cooperative, Inc. v. Morton, 165 U.S. App. D.C. 344, 507 F.2d 1167 (1974). Accordingly, the defense of sovereign immunity has been waived.
Next defendants challenge this Court's jurisdiction to provide any relief under 28 U.S.C. § 1361 on the ground, correctly, that mandamus does not lie to compel a discretionary act, but only where there is a ministerial duty to be performed. Defendants' position is that creditability of retirement benefits is discretionary because plaintiff's contract service was not considered, by the defendants CSC Commissioners, to be Federal employment under 5 U.S.C. § 2105(a). Such a contention, of course, assumes the ultimate issue in this case, i.e., whether plaintiff was in fact an employee of the United States during the period in question. Further, the determination of whether a person performing services is an employee in a given case is not committed to agency discretion, but ...